Opinion
C. A. 8:20-cv-03613-SAL-JDA
10-30-2020
Terron Gerhard Dizzley, Plaintiff, v. Gwendolyn D. Chiles, Defendant.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
Terron Gerhard Dizzley (“Plaintiff”), proceeding pro se and in forma pauperis, brings this civil action pursuant to 42 U.S.C. § 1983. [Doc. 1.] Plaintiff is an inmate in the custody of the South Carolina Department of Corrections (“SCDC”) and is currently incarcerated at the Broad River Correctional Institution. [Id. at 2.] Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned Magistrate Judge is authorized to review such complaints for relief and submit findings and recommendations to the District Court. Having reviewed the Complaint in accordance with applicable law, the undersigned finds that this action is subject to summary dismissal for the reasons below.
BACKGROUND
Plaintiff filed this action under § 1983 purportedly for violations of his rights under the First and Fourteenth Amendments to the United States Constitution. [Doc. 1 at 4.] Plaintiff alleges Defendant is the Clerk of Court for McCormick County. [Id.] According to Plaintiff, the events giving rise to his claims occurred on December 10, 2018. [Id. at 5.] Plaintiff contends that Defendant violate his First and Fourteenth Amendment rights to due process and access to the courts by intentionally failing to send him a notice of dismissal of his state court civil action. [Doc. 1-2 at 1.] According to Plaintiff, he filed a state court action against SCDC on August 17, 2017, at case number 2018-cp-350-0058. [Id.] Plaintiff filed a response to SCDC's motion for summary judgment on October 2, 2018. [Id.] Then, on May 6, 2019, Plaintiff filed a motion in his state court action. [Id.] The state court responded to Plaintiff's motion stating that his case had been dismissed on December 10, 2018. [Id.] However, Defendant never sent him a notice of entry of judgment of dismissal. [Id.] According to Plaintiff, he is still fighting to have his case reinstated in the state court due to Defendant's failure to send him the notice. [Id.]
For his injuries, Plaintiff asserts that his state court case at case number 2018-cp-350-0058 was dismissed and he did not have an opportunity to appeal. [Doc. 1 at 6.] For his relief, Plaintiff seeks money damages in the amount of $350,000. [Id.]
The Court takes judicial notice of Plaintiff's state court records as well as the other cases he has filed in this Court.
See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”) (alteration omitted).
STANDARD OF REVIEW
Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted, ” is “frivolous or malicious, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Further, Plaintiff is a prisoner under the definition in 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if Plaintiff had prepaid the full filing fee, this Court would be charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the Complaint if (1) it were frivolous, malicious, or failed to state a claim upon which relief may be granted, or (2) if it sought monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
Because Plaintiff is a pro se litigant, his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). However, even under this less stringent standard, Plaintiff's Complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which Plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Although the Court must liberally construe the pro se Complaint and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in his pleadings, the Complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact); cf. Skinner v. Switzer, 562 U.S. 521, 530 (2011) (holding that plaintiff need not pin his claim for relief to precise legal theory). “A claim has ‘facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
DISCUSSION
Plaintiff's Complaint is subject to summary dismissal
Plaintiff filed this action pursuant to 42 U.S.C. § 1983, which “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). A civil action under § 1983 “creates a private right of action to vindicate violations of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiff's Complaint is subject to summary dismissal because his claim is frivolous as Defendant is entitled to immunity from suit. Plaintiff sues a single Defendant in this action, Gwendolyn D. Chiles, the McCormick County Clerk of Court. [Doc. 1 at 2, 4.] Plaintiff essentially alleges that Defendant did not properly conduct her duties in her role as clerk of court when she failed to mail a notice of dismissal of his state court action. Nevertheless, Defendant is entitled to quasi-judicial immunity. It is well settled that judges have absolute immunity from a claim for damages arising out of their judicial actions unless they have acted in the complete absence of all jurisdiction. Mireles v. Waco, 502 U.S. 9, 11-12 (1991). Further, clerks of court and other court support personnel are entitled to immunity similar to judges when performing their quasi-judicial duties. See Jarvis v. Chasanow, 448 Fed.Appx. 406 (4th Cir. 2011); Brooks v. Williamsburg Cty. Sheriff's Office, No. 1:15-cv-1074-PMD-BM, 2016 WL 1427316, at *6 (D.S.C. Apr. 11, 2016). “Absolute immunity ‘applies to all acts of auxiliary court personnel that are basic and integral part[s] of the judicial function.'” Jackson v. Houck, 181 Fed.Appx. 372, 373 (4th Cir. 2006) (quoting Sindram v. Suda, 986 F.2d 1459, 1461 (D.C. Cir. 1993)). Absolute immunity is “an immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Here, the alleged wrongful act, or failure to act, was part of Defendant's quasi-judicial function as the McCormick County Clerk of Court. Thus, Defendant has absolute quasi-judicial immunity from this lawsuit. Accordingly, Plaintiff's claim against Defendant should be dismissed, with prejudice, as frivolous pursuant to 28 U.S.C. § 1915(d) because it is barred by absolute quasi-judicial immunity. See Mills v. Marchant, No. 8:19-cv-1512-TMC-JDA, 2019 WL 2647600, at *3 (D.S.C. June 4, 2019) (collecting cases), Report and Recommendation adopted by 2019 WL 2644216 (D.S.C. June 27, 2019).
Dismissal of this action should be deemed a “strike”
As noted, the Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997e (“PLRA”), requires this Court to engage in a preliminary screening of any complaint in which a prisoner seeks redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must identify “cognizable claims or dismiss the complaint, or any portion [thereof, that] is frivolous, malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915A(b)(1). Further, the PLRA limits the ability of prisoners to file civil actions without prepayment of filing fees. McLean v. United States, 566 F.3d 391, 393 (4th Cir. 2009). Specifically, the PLRA contains a “three strikes” rule, codified at 28 U.S.C. § 1915(g), which provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g). The PLRA's three strikes rule was enacted to bar prisoners who have filed prior frivolous litigation in a federal court from pursuing certain types of federal civil litigation without prepayment of the filing fee. McLean, 566 F.3d at 393-94 (citing 28 U.S.C. § 1915(g)).
Plaintiff is a frequent filer, having filed at least twelve other cases in this Court at case numbers 8:20-cv-3590, 2:20-cv-2613, 2:20-cv-0991, 8:20-cv-0126, 8:19-cv-2665, 8:19-cv-1584, 2:19-cv-0530, 2:19-cv-0181, 8:18-cv-2053, 2:18-cv-1951, 8:18-cv-1692, and 8:17-cv-0213. Several of Plaintiff's prior cases involved frivolous claims similar to the one he asserts in this action. Significantly, in case number 2:20-cv-0991 Plaintiff sued numerous defendants that were entitled to immunity for the same reasons Defendant is entitled to immunity in this case. See Dizzley v. Hixson, No. 2:20-cv-991-SAL-JDA (D.S.C. Mar. 9, 2020), Doc. 1. That case was dismissed on April 16, 2020, pursuant to 28 U.S.C. § 1915A, without leave to amend and without issuance of service of process. Id., Doc. 12. Accordingly, because the Complaint in the present action is subject to summary dismissal as it is frivolous under § 1915(d), and because Plaintiff has filed similar frivolous actions that have been dismissed, the undersigned recommends that this case be deemed a strike for purposes of the PLRA's three strike rule. See Lomax v. Ortiz-Marquez, 140 S.Ct. 1721, 1727 (2020); Jackson v. Hargadon, No. PJM-12-2622, 2012 WL 8466129, at *2 (D. Md. Sept. 11, 2012) (deeming action a strike because it was dismissed as frivolous where plaintiff sued a judge who was entitled to judicial immunity), aff'd, 510 Fed.Appx. 270 (4th Cir. 2013).
CONCLUSION
Consequently, for the reasons stated above, it is recommended that the District Court dismiss this action without issuance and service of process pursuant to 28 U.S.C. § 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal). See Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972). Further, it is recommended that the dismissal be counted as a strike pursuant to 28 U.S.C. § 1915(g).
The undersigned finds that Plaintiff cannot cure the defects in his Complaint by mere amendment and therefore recommends that the instant action be dismissed without affording Plaintiff an opportunity to amend because amendment would be futile. See Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 624 (4th Cir. 2015); Thomas v. Drive Auto. Indus. of Am., Inc., No. 6:18-cv-169-AMQ, 2018 WL 5258811, at *2 (D.S.C. July 25, 2018) (declining to automatically give plaintiff leave to amend pursuant to Goode because plaintiff could not cure the defects in his claims against defendant by mere amendment), Report and Recommendation adopted by 2018 WL 5255183 (D.S.C. Oct. 22, 2018); Workman v. Kernell, No. 6:18-cv-00355-RBH-KFM, 2018 WL 4826535, at *2 (D.S.C. Oct. 2, 2018) (declining to give plaintiff leave to amend because it would be futile for plaintiff to amend his complaint against the defendants being dismissed), aff'd, 766 Fed.Appx. 1 (4th Cir. 2019).
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street, Room 239
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).